Back
2007(3) JLJ 80
A.K. Mishra, J.
Khemchand Motilal Jain (M/s.) v. State of M.P. and another
First Appeals No.236 and 237 of 1994 (Jabalpur) : against the
judgment and decree of I Additional District Judge, Raisen, passed in
Civil Suits No.13-A and 16-A of 1986; Decided on 8.2.2007.
Initially a writ petition - MP No. 143/73 was filed assailing the aforesaid recoveries. It was filed on 16.2.1973 and was decided on 24.1.1979 by the Division Bench of this Court. It was held by this Court that question raised in the writ petition was purely question of facts and disputed question could only be decided on evidence. The writ petition was dismissed, and interference was not made. Thereafter it was claimed in the plaint that a notice under section 80, Civil Procedure Code was served. Date of serving of notice has not been mentioned in the plaint. It was mentioned that the cause of action arose on October, 1972 at Sagar. Cause of action also arose on 24.1.1979 and 22.11.1979 when notice of demand of aforesaid amount was served by the defendants.
After the decision of the writ petition on 24.1.1979 civil suits were filed on 18.12.1979 in the Court of First Additional District Judge, Sagar, after lapse of about 11 months from the date of decision of the writ petition.
Both the civil suits were ordered to be returned on 22.9.1984 by Court at Sagar for presentation to the Court at Raisen as no part of cause of action arose in the District of Sagar. Suits were presented in the Court of District Judge, Raisen on 1.10.1984, the plaints were ordered to be returned on 22.9.1984.
Trial Court, as per the impugned judgment and decree, has held that both the suits were barred by limitation. There was inordinate delay in filing the suits after dismissal of the writ petition on 24.1.1979.
[Paras 3 to 6
Held: The period of limitation had expired during the pendency of the writ petition; once period of limitation started it was not checked, at the most exclusion could be claimed. Once the period of limitation had expired during the pendency of the certain proceedings which was not entertained, exclusion of the period spent in the proceedings is permissible, but, the fresh period of limitation would not start after termination of the proceedings. There has to be exclusion only of the period spent in the writ petition, but no extension of the period of limitation to file the suit owing to the pendency of the writ petition decided on 24.1.1979. After adding the period of notice of two months required under section 80, Civil Procedure Code, suits ought to have been preferred maximum after expiry of two months‘ period after decision of the writ petition. Limitation to file suit did not restart w.e.f. 24.1.1979 as claimed by appellant, it already stood expired. [Para 10
(2) Civil P.C., 1908 -- O.7 R.10 -- plaint returned for presentation before proper Court -- it has to be filed expeditiously -- plaintiff is not entitled to exclude time granted for representation -- rule of equity cannot help plaintiff not diligent in filing suit. AIR 1937 Pat. 495 relied on. [Para 12
(3) Limitation Act, 1963 -- S.14 -- period required by Court for return of plaint after passing of order -- can be excluded -- if period lapses due to laches of plaintiff for receiving the plaint -- the same cannot be excluded. AIR 1961 Raj.162 relied on. [Para 12
(4) Limitation Act, 1963 -- S.14 -- only period spent in proceedings has to be excluded. 2004 RN 131 relied on. [Para 12
(5) Constitution of India -- Art.226 -- Limitation Act, 1963 -- S.14 - writ proceedings -- are civil proceedings -- S.14 of tile Act is applicable. AIR 1985 Cal.391 relied on. [Para 12
(6) Limitation Act, 1963 -- S.14 -- any proceedings for vindication of civil right -- such proceeding is covered by words "civil proceedings" used under. 2001 RN 131 relied on. [Para 12
¼1½ ifjlhek vf/kfu;e] 1963 && /kkjk 14 && xyr U;k;ky; esa flfoy dk;Zokgh && ,slh dk;Zokgh dh vof/k ds viotZu dk nkok fd;k tk ldrk gS && ,slh dk;Zokgh lekIr gksus ij ifjlhek u, fljs ls izkjaHk ugha gksrhA
izkjaHk esa] iwoksZDr] olwfy;ksa ij vk{ksi djrs gq, ,d fjV ;kfpdk&izdh.kZ ;kfpdk Ø- 143@73 Qkby dh xbZ FkhA ;g 16-2-1973 dks Qkby dh xbZ Fkh vkSj bl U;k;ky; dh [kaM U;k;ihB }kjk 24-1-1979 dks fofuf‘pr dh xbZ FkhA bl U;k;ky; }kjk ;g vfHkfu/kkZfjr fd;k x;k Fkk fd fjV ;kfpdk esa mBk;k x;k iz‘u ‘kq) :i ls rF;ksa dk iz‘u Fkk tks dsoy lk{; ij ls fofuf‘pr fd;k tk ldrk FkkA ;kfpdk [kkfjt dk nh xbZ Fkh vkSj gLr{ksi ugha fd;k x;k FkkA inqijkar okni= esa ;g nkok fd;k x;k Fkk fd flfoy izfØ;k lafgrk dh /kkjk 80 ds v/khu lwpuk rkehy dh xbZ FkhA lwpuk dh rkehy dh rkjh[k dk mYys[k okni= esa ugha fd;k x;k FkkA ;g mYys[k fd;k x;k Fkk fd okngsrqd vDVwcj 1972 esa lkxj esa mn~Hkwr gqvk FkkA okngsrqd 24-1-1979 vkSj 22-11-1979 dks Hkh mn~Hkwr gqvk Fkk tc izfroknhx.k }kjk iwokZsDr jde dh ek¡x dh lwpuk rkehy dh xbZ FkhA
24-11-1979 dks fjV ;kfpdk esa fofu‘p; ds i‘pkr` flfoy okn 18-12-1979 dks izFke vij ftyk U;k;k/kh‘k] lkxj ds U;k;ky; es fjV ;kfpdk ds fofu‘p; ds i‘pkr` yxHkx 11 ekl O;rhr gksus ij Qkby fd, x,A
lkxj fLFkr U;k;ky; }kjk flfoy okn jk;lsu ds U;k;ky; esa izLrqr fd, tkus ds fy, 22-9-1984 dks okil fd, tkus ds fy, vknsf‘kr gq, D;kasfd okngsrqd dk dksbZ lkxj ftys esa mn~Hkwr ugha gqvk FkkA okn] ftyk U;k;k/kh‘k jk;lsu ds U;k;ky; esa 1-10-1984 dks izLrqr fd, x,] okni= okil fd, tkus dk vkns‘k 22-9-1984 dks gqvk FkkA
vk{ksfir fu.kZ; vkSj fMØh ds vuqlkj] fopkj.k U;k;ky; us vfHkfu/kkZfjr fd;k fd nksuksa okn ifjlhek }kjk oftZr FksA 24-1-1979 dks fjV ;kfpdk [kkfjt gksus ds i‘pkr~ okn Qkby fd, tkus esa vR;f/kd foyac gqvk FkkA ¿ iSjk 3 ls 6À
vfHkfu/kkZfjr % ifjlhek dh vof/k fjV ;kfpdk yafcr jgus ds nkSjku lekIr gks pqdh Fkh] ifjlhek vof/k izkjaHk gksus ij og jksdh ugha tk ldrh] vf/kd&ls&vf/kd viotZu dk nkok fd;k tk ldrk gSA dksbZ dk;Zokgh yafcr jgus ds nkSjku tks xzg.k ugha dh xbZ Fkh] ifjlhek dh vof/k lekIr gks tkus ij dk;Zokgh esa O;rhr vof/k dk viotZu vuqKs; gS fdarq ,slh dk;Zokgh lekIr gksus ij ifjlhek dh ubZ vof/k izkjaHk ugha gksxhA dsoy fjV ;kfpdk esa O;rhr vof/k dk viotZu gksxk] fdarq 24-1-1979 dks fu.khZr fjV ;kfpdk ds yacu ds dkj.k ifjlhek vof/k dk foLrkj.k ugha gksxkA flfoy izfØ;k lafgrk dh /kkjk 80 ds v/khu visf{kr lwpuk dh nks ekl dh vof/k tksM+ dj okn] vf/kdrj] fjV ;kfpdk ds fofu‘p; ds i‘pkr~ nks ekl dh vof/k ds volku ij izLrqr fd, tkus pkfg, FksA okn Qkby djus ds fy, ifjlhek 24-1-1979 ls iqu%izkjaHk ugha gqbZ tSlk vihykFkhZ }kjk nkok fd;k x;k gS] og igys&gh lekIr gks pqdh FkhA ¿ iSjk 10À
¼2½ flfoy izfØ;k lafgrk] 1908 && vk- 7 fu- 10 && okni=] leqfpr U;k;ky; ds le{k izLrqr fd, tkus ds fy, ykSVk;k x;k && og vfoyac Qkby fd;k tkuk pkfg, && oknh] iqu% izLrqfr ds fy, vuqnÙk le; vioftZr fd, tkus dk gdnkj ugha gS && okn Qkby djus esa v/;olk;h ugha gks] lkE;k dk fu;e ,sls oknh dks lgk;d ughaA , vkb vkj 1937 iVuk 495 voyafcrA ¿ iSjk 12À
¼3½ ifjlhek vf/kfu;e] 1963 && /kkjk 14 && vkns‘k ikfjr fd, tkus ds i‘pkr~ okni= okil fd, tkus esa U;k;ky; }kjk vko‘;d vof/k && vioftZr fd;k tk ldrk gS && okni= izkIr djus esa oknh esa foyac ds dkj.k O;ixr vof/k && vioftZr ugha dh tk ldrhA , vkb vkj 1961 jktLFkku 162 voyafcrA ¿ iSjk 12À
¼4½ ifjlhek vf/kfu;e] 1963 && dsoy dk;Zokgh esa O;rhr vof/k vioftZr dh tkuk gksxhA 2004 jk fu 131 voyafcrA ¿ iSjk 12À
¼5½ Hkkjr dk lafo/kku && vuq- 226 && ifjlhek vf/kfu;e] 1963 && /kkjk 14 && fjV dk;Zokgh && flfoy dk;Zokgh gS && /kkjk 14 ykxw gksrh gSA , vkb vkj 1985 dydÙkk 391 voyafcrA ¿ iSjk 12À
¼6½ ifjlhek vf/kfu;e] 1963 && /kkjk 14 && flfoy vf/kdkj dh j{kk ds fy, dksbZ&Hkh dk;Zokgh && ;Fkk iz;qDr ‘‘kCn Þflfoy dk;Zokghß }kjk vkPNkfnr gSA 2001 jk fu 131 voyafcrA ¿ iSjk 12À
1. These appeals have been preferred by the plaintiff aggrieved by dismissal of the suits as barred by limitation by the First Additional District Judge, Raisen as per the common judgment and decree dated 21.4.1994 passed in consolidated Civil Suits No. 13-N1986 and 16-N1986.
2. The plaintiff M/s. Khemchand Motilal Jain, a registered partnership firm instituted a Civil Suit No. 13-N1986 for declaration and injunction challenging the recovery fastened by the DFO, Raisen of Rs.47,250.47. The other Civil Suit No.16-A/l986 was filed assailing recovery of Rs.33,352.71. Both the civil suits were consolidated by the trial Court.
3. It is not in dispute that initially a writ petition - MP No. 143173 was filed assailing the aforesaid recoveries. It was filed on 16.2.1973 and was decided on 24.1.1979 by the Division Bench of this Court. It was held by this Court that question raised in the writ petition was purely question of facts and disputed question could only be decided on evidence. The writ petition was dismissed, and interference was not made. thereafter it was claimed in the plaint that a notice under section 80, Civil Procedure Code was served. Date of serving of notice has not been mentioned in the plaint. It was mentioned that the cause of action arose on October, 1972 at Sagar. Cause of action also arose on 24.1.1979 and 22.11.1979 when notice of demand of aforesaid amount was served by the defendants.
4. After the decision of the writ petition on 24.1.1979 civil suits were filed on 18.12.1979 in the Court of First Additional District Judge, Sagar, after lapse of about 11 months from the date of decision of the writ petition.
5. Both the civil suits were ordered to be returned on 22.9.1984 by Court at Sagar for presentation to the Court at Raisen as no part of cause of action arose in the District of Sagar. Suits were presented in the Court of District Judge, Raisen on 1.10.1984, the plaints were ordered to be returned on 22.9.1984.
6. Trial Court, as per the impugned judgment and decree, has held that both the suits were barred by limitation. There was inordinate delay in filing the suits after dismissal of the writ petition on 24.1.1979. Suits were filed in the Court of First Additional District Judge, Sagar on 18.12.1979 and after return of the plaints from the Court at Sagar on 22.9.1984 after 8 days plaints were presented in the Court at Raisen. There was delay in that also. Thus, the suits have been rightly dismissed as per the common judgment and decree. Aggrieved thereby these appeals have been preferred.
7. Shri K.N. Agrawal appearing with Ms. Prabal Gupta on behalf of the appellant has submitted that as the period spent while pursuing the writ petition has to be excluded under section 14 of the Limitation Act, 1963 and a notice of 60 days under section 80, Civil Procedure Code was required to be served after decision of the writ petition after service of the notice both the suits were filed and the period of 8 days spent after return of the plaints from the Court at Sagar and presentation of Raisen was not an inordinate delay in any manner. Thus, the suits ought to have been held within period of limitation. Period of Limitation of one year commenced on decision of writ petition, hence, suits filed were within limitation.
8. Shri Om Namdeo, Government Advocate, appearing on behalf of the respondents/State has supported the judgment and decree passed by the Court-below. He has submitted that the period of limitation was one year as provided under Article 100 of the Limitation Act. The demand notices were initially issued on 30.12.1972. The limitation to file the suit was upto 30.12.1973, that stood expired. A writ petition was filed on 16.2.1973 assailing the demand raised, that writ petition was decided on 24.1.1979 on the ground that the civil suit was the proper remedy, disputed question of fact could not have been gone into in the writ petition. Even if the said period of six years is excluded the civil suit wa
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
